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June 2010 Archives

Green Card Seized at Airport

Our client's green card was seized by Department of Homeland Security (DHS) after she tried to re-enter the USA after a short trip abroad.The DHS now has most USA criminal records in the database at the airports. They even have criminal records from certain foreign countries, like Canada, etc.If the DHS believes the crime could make the person subject to deportation, they often seize the green card at the airport. Such a person, like our client, is then left with no proof of legal status.In our client's case, we tried unsuccessfully to get the green card returned, and finally, today, the DHS office in New Orleans, stamped her passport with proof of legal status.Obtaining that stamp was no simple task because it requires the filing of form I-90, which is normally used to replace a lost or stolen passport. In this case it was neither lost nor stolen, and it took great effort to get DHS to accept the form. And, without proof that the form was filed, DHS was refusing to stamp the passport with proof of green card status. Now that she has proof again, our client can travel abroad, renew her driver's license, and work legally.

Arizona Immigration Law: Violation of the 14th Amendment

When Arizona recently passed a law making it a crime to be an illegal immigrant and requiring law enforcement to investigate when they have any probable cause to suspect people are here illegally, the act has highlighted this extraordinary gray area of American law. Immigration has always been a federal issue and a matter of civil rather than criminal law. It is not technically a punishable crime to be here illegally. Whether Arizona has a right to make it a crime will be argued in the American courts.As for empowering law enforcement to investigate immigration status, if probable cause means finding a current driver’s license issued by another nation in the wallet of a murder suspect or hearing him blurt out “Please don’t ship me back to Mexico,” that’s reasonable. If probable cause means realizing a person stopped for speeding looks Hispanic or has the last name  ”Martinez”,  that’s unreasonable, and not to mention a violation of the 14th amendment of the U.S. Constitution.  Additionally, this law pales next to other proposed state and local laws that are in some cases obviously unconstitutional.In Arizona, state Senator Russell Pearce, a prime mover behind Arizona’s first foray into immigration law, is proposing a change in law so that babies born in the United States whose parents cannot prove they are here legally are not granted citizenship. Whether or not Senator Russell thinks this is a great idea, this is unconstitutional.The 14th Amendment of the U. S. Constitution states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”   An attempt to pass a state law saying children born in Arizona to illegal immigrants are not citizens is a cynical waste of time, an attempt to pander to the emotions of anti-immigrant voters without doing a thing to deal with any real problems.Arizona immigration law has become a tipping point for other states looking to pass laws involving social services, firearms.  And in Nebraska this week, residents in the town of Fremont will vote on a law that would make it illegal to hire illegal aliens and force employers to use the federal E-Verify system to check the status of applicants. It would also become illegal to rent apartments to illegal aliens, which will increase the rate of homelessness.The issue in Fremont, Nebraska,  a town heavily dependent on the meatpacking industry is that the Hispanic population has grown from 165 in 1990 to nearly 2,000 now, in a town of about 25,000.  The growth is contributed to manufacturing plants like Fremont Beef and Hormel, unemployment is less than 5 percent; however some residents point to the Hispanic population as a source of growing crime and increased demand for social services.Oklahoma is looking at passing tougher penalties for illegal immigrants caught with firearms.  South Carolina is considering passing a law making it illegal to hire workers on the side of the road. In addition, state immigration legislation is also being considered in Idaho, Utah, Missouri, Texas, North Carolina, Maryland, Minnesota, and Colorado.  Who’s next?  Get in line.What the other states are witnessing around the country is that the public’s patience is wearing out with the federal government’s failure to enforce immigration laws and protect the interests of American workers and taxpayers.The problem with some of these newly proposed laws are that it’s already illegal to hire illegal immigrants, most large businesses already use E-Verify™ and the some of the manufacturing plants are located outside of the city limits and is unincorporated. Some of these newly proposed laws would have no effect on the factories and could discourage landlords from renting to any Hispanics, Asians, and other immigrants, leaving families homeless.In my humble opinion, Americans need immigration laws that make sense, and we need them enforced.  However, we don’t need grandstanding politicians pushing for meaningless and unconstitutional laws that violate the 14th Amendment of the U.S. Constitution.    It’s a waste of our time, energy, and funds.   Finding real solutions will demand all of those resources, and it’s being wasted on passing unconstitutional laws.

Gay Man Pursues Sexual Discrimination Claim

Today, my client will be participating in an Equal Employment Opportunity Commission (EEOC) investigation concerning his charge of discrimination. We filed his charge with the EEOC claiming discrimination based on sex.  While normally there are no laws preventing employment discrimination based on sexual orientation, in this case, his supervisor suspected that the client was gay, kept asking questions about his family, etc, and fired him after 6 weeks on the job because he "was not the right fit," and things were "not working well."   The client is claiming sex discrimination, as the basis to enable the EEOC to investigate. Following today's investigatory process, there will be the opportunity for mediation to see if there is a way to amicably resolve this case.

Supreme Court Ruling Saved Immigrant from Deportation

The Supreme Court has issued a decision this week that will help many non-citizens avoid being deported. A state drug offense is not considered an “aggravated felony” unless it is punishable as a felony under federal law. A second or subsequent simple possession drug offense is not punishable as a felony under federal law unless the prosecutor charges the defendant as a recidivist before trial or before a guilty plea. On June 14, 2010, the Supreme Court ruled that when a defendant has been convicted of a second or subsequent simple possession drug offense that has not been enhanced as a result of a prior conviction, the defendant has not been convicted of an offense that is punishable as a felony under federal law and has therefore not been convicted of an “aggravated felony.” Carachuri-Rosendo v. Holder, 2010 WL 2346552, at *11 (U.S. June 14, 2010).The Supreme Court’s decision will help one of my clients who is currently in deportation proceedings. His case was put on hold by the immigration judge, pending the outcome of this Supreme Court case. My client obtained his permanent residence (“green card”) in 1981, is married to a U.S. citizen, and has two simple possession drug convictions. Prior to the Supreme Court’s decision, my client was ineligible for cancellation of removal because he was considered to have been convicted of an “aggravated felony.” However, my client was not charged as a recidivist when he was prosecuted for his second simple possession drug offense. Therefore, as a result of the Supreme Court’s decision, my client is no longer considered to have been convicted of an “aggravated felony” and my client is now eligible to apply for cancellation of removal. If his application for cancellation of removal is granted, he will be able to remain in the United States. The Supreme Court’s decision has saved him from deportation.

USCIS Proposes Change in Fees

U.S. Citizenship and Immigration Services (USCIS) is seeking public comment on a proposed federal rule that would adjust fees for immigration benefit applications and petitions.   The proposal, posted to the Federal Register today for public viewing, would increase overall fees by a weighted average of about 10 percent but would not increase the fee for the naturalization application.The proposed fee structure would establish three new fees, including a fee for regional center designations under the Immigrant Investor Pilot Program, a fee for individuals seeking civil surgeon designation and a fee to recover USCIS’s cost of processing immigrant visas granted by the Department of State.  The proposed fee structure also reduces fees for certain individual applications and petitions as a result of lower processing costs.Our office believes that fee increases should be followed by improvements in service.  As this has not occurred in the past following fee increases, we doubt it will happen now.  If anything, increasing fees in a slow economy will just result in few applications and revenues for the USCIS.To view the proposed new filing fees, please click HERE.

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